A federal judge dismissed a lawsuit meant to improve West Virginia’s foster care system, saying the federal courts can’t solve the problem and placing the blame with West Virginia state government. (Getty Images)
What role should the courts play in reforming government institutions that violate constitutional rights? If a recent court order dismissing a class action against West Virginia’s foster care system for lack of standing prevails, the answer is that courts should remain in the gallery. An article by Amelia Ferrell Knisely explains the circumstances surrounding the dismissal well. Yet what is most surprising is the line of reasoning pursued in the dismissal order, what it means for the children stuck in the state’s broken foster care system, and what it might mean for the future of institutional reform litigation.
Let’s start with how the court’s order specifically impacts children in foster care. In light of the dismissal, the court directs the plaintiffs to seek relief at the ballot box and reminds them that it’s not the judiciary’s duty to protect people from their political decisions. What the court does not mention is that the youngest plaintiff was 2 when the complaint was filed. It will be around a decade before he receives the right to vote. Suggesting the ballot box seems hardly practical.
Why do the plaintiffs lack standing? The order rightly reasons that standing requires a redressable injury, an injury that a court can correct. The court notes that it cannot administer state institutions, hire state employees or write state budgets. It hastens to add that it cannot redistribute state resources. The court sees these examples as interventions that would violate the separation of powers. In the court’s mind, these are ways a court cannot provide redress. These are fair concerns. It is certainly within the public interest to guard the separation of powers, a bedrock principle of the Constitution. But the court determines its role is even more limited.
Routinely, institutional reform litigation involves setting standards. For instance, it’s difficult to picture how a court could go about addressing prison overcrowding problems without standard setting. In the dismissed class action, the plaintiffs ask the court to mandate West Virginia’s Department of Human Services to make certain that children in the system are adequately monitored and that caseworkers are appropriately trained.
Although these requests seem reasonable enough, the court remarkably concludes that these requests are ungrantable because requiring caseworkers to be appropriately trained, for example, would require the court to define “appropriate” for the institution, and that would involve the court in administration. With this same reasoning, the court rules out most of the relief sought. This reasoning, furthermore, seems to imply that all standard-setting institutional reform litigation is unconstitutional.
The court wrongly presumes that definitions are equally strict. A court could surely define “appropriate” in a broad manner, to not encroach upon institutional administration. Suppose a court decided to order DoHS to adequately train caseworkers and defined “adequate” as “to a level that decreases the frequency of constitutional rights violations.” Presumably, this definition would not curtail DoHS’s policy-making autonomy.
An order with this definition rules out only two actions. It precludes DoHS from maintaining the current training regime and it prevents DoHS from designing a regime that would escalate the frequency of rights violations. It leaves policy writing to the institution. The court would then reassess DoHS at a later date. There’s a great difference between requiring adequate training and writing the training manual.
Even if we grant that a court defining terms like “adequate” and “appropriate” slightly impacts the autonomy of institutions, concluding that courts cannot intervene seems imprudent. Such a conclusion creates an entire class of constitutional rights violations that are only redressable with majority support. Imagine a state institution that regularly violates the constitutional rights of religious minorities. The violations are concrete and traceable to the institution. However, because the violations are not traceable to a discrete source, the court reasons that redress is beyond its power. This leaves the ballot box, which is no recourse for a group in the minority.
Undoubtedly, the separation of powers is a principle to defend, but I worry this dismissal goes too far. Although institutional reform litigation might demand precision and seem quixotic at times, there is certainly a role for the judiciary to play in protecting the constitutional rights of the most vulnerable. The courts must make their entrances and exits on the stage rather than remaining in the gallery. Providing redress while upholding the separation of powers might prove an arduous task. When the courts struggle, I urge them to continue.
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